Saving a Court seat for those who need it most
The pending retirement of Associate Justice John Paul Stevens has sparked a flurry of Supreme Court shortlists from pundits eager to weigh in on the looming Senate confirmation battle over his replacement. But one issue that has stood out beyond the usual left-right divide over abortion, gay marriage, and executive power is that Stevens is the lone Protestant on the Court. New York Times Supreme Court reporter Adam Liptak and Forward journalist Nathan Guttman have both authored articles on the subject. Guttman’s piece, in particular, focuses on the fact that two of the leading candidates to replace Stevens are Jews: Solicitor General and former Harvard Law Dean Elena Kagan and D.C. Circuit Judge Merrick Garland.
Liptak and Guttman are correct that religion is no longer the issue it once was in the feverish spectacles that double as confirmation hearings. And yet diversity still matters — so much so that the appointment of a third Jewish justice to the current court would not be seen by many Jews of my generation as a necessarily welcome development. Indeed, for Jews in their mid-20s and 30s, the notion of a “Jewish seat” is more than just an anachronism: It’s an embarrassment.
Such sentiment does not stem from any ambivalence regarding my Judaism. As a product of Jewish day school and the son of a Reform rabbi, I embrace my Judaism in all facets of my life. Rather, I am embarrassed because it only reminds me of the millions of Americans who have yet to be represented on the most important court in America.
This issue hit home with me when Sonia Sotomayor visited Yale Law School last fall on the heels of her nomination and confirmation as the next Associate Justice to the Supreme Court. As the first Hispanic Justice, Sotomayor was more than just a “wise Latina.” She represented the hopes and dreams of millions of Hispanics in America striving to succeed in what is soon to be a majority-minority nation. As much as I thought I understood that, I was unable to truly grasp the magnitude of the moment until that visit.
Following her speech, Justice Sotomayor posed for pictures with some of the students. One of my classmates — a leader within the Hispanic community at Yale Law and an individual who would make a superb future justice in her own right — managed to get her picture taken with Justice Sotomayor. Posting the photo to her Facebook page, she added the caption: “One of those life moments I’ll remember forever.” In those eight short words, I began to grasp what my parents and grandparents must have felt upon each and every appointment of a Jewish justice.
Thus, commentators today who try to argue that diversity is not inherently important or that President Obama already filled his “diversity quotient” with the appointment of Sotomayor are dead wrong. But I would emphasize that Elena Kagan’s gender is far more significant than her religion and that Jews should unite to fight for a nominee who can shatter a totally different glass ceiling within the legal profession.
Let me be clear, I am mighty proud of the early Jewish justices who endured nasty anti-Semitism so that future Jewish attorneys, such as myself, could succeed. Louis Brandeis, an intellectual giant on the Court, faced an unusually bitter confirmation battle as the nation’s first Jewish nominee. That being said, the early Jewish justices, who included the likes of Benjamin Cardozo and Felix Frankfurter, blazed a trail that has since become a well-worn path. Until I learned about it in college, I wasn’t even aware that Stephen Breyer was Jewish.
It may be true that in an era in which Joseph Lieberman is the most recognizable Jewish figure in Washington that Jewish progressives could use a new leader to inspire future generations. But as long as David Axelrod and Rahm Emanuel labor together in the White House and Ruth Bader Ginsburg continues to churn out opinions, I feel Jews are well-represented where it counts. Instead, I look forward to the appointment of a deserving individual to the United States Supreme Court who could serve a far more under-represented population.